| Randall Kennedy, Martin Luther King's
Constitution: a Legal History of the Montgomery Bus Boycott, 98 Yale Law
Journal 999-1067 (April, 1989)(397 Footnotes Omitted)
I have had a little something to do with lawyers since the 1955
Montgomery bus boycott.
Martin Luther King, Jr. [1]
INTRODUCTION
Martin Luther King, Jr., demonstrated a keen appreciation for both
the power and the limits of law. The movement in which he played such a
central role--the Civil Rights Movement of 1955-1968--produced, as Harry
Kalven, Jr. once quipped, 'the first revolution in history conducted, so
to speak, on advice of counsel.' King displayed attentiveness to legal
symbolism in the first speech that he gave as a civil rights leader.
Urging the blacks of Montgomery, Alabama, to boycott the city's buses to
protest racially-motivated mistreatment, he invoked legal and religious
icons to inspire their collective defiance. 'We are not wrong,' he told
his audience at the Holt Street Baptist Church on the evening of
December 5, 1955, because 'if we are wrong, the Supreme Court of this
nation is wrong. If we are wrong, the Constitution of the United States
is wrong. If we are wrong, God Almighty is wrong.'
Beginning that evening, and over the next thirteen years, King's
activities placed him at or near the center of controversies that
dramatically altered the nation's legal landscape. From the Montgomery
Bus Boycott arose Gayle v. Browder, the Supreme Court decision that
invalidated de jure segregation in intrastate transportation and thereby
effectively overruled Plessy v. Ferguson. Protest campaigns in
Birmingham and Selma constituted crucial links in the chain of events
that culminated in the Civil Rights Act of 1964, the Voting Rights Act
of 1965, and the Supreme Court decisions upholding these legislative
initiatives.
These and related campaigns also gave rise to cases that
significantly affected legal doctrines regulating freedom of expression.
King claimed repeatedly that 'the great glory of American democracy is
the right to protest for rights.' The Civil Rights Movement tested his
hypothesis by staging protest activities that forced courts to create or
refine doctrine involving a wide array of First Amendment concerns,
including symbolic speech, the public forum, freedom of association,
libel, and rules governing mass demonstrations. The disciplined
peacefulness of the civil rights activists and the underlying decency of
their demands helped to create an atmosphere conducive to judicial
liberality. The result was not only a beneficial transformation in the
substantive law of race relations, but also a blossoming of libertarian
themes in First Amendment jurisprudence. In the context of the First
Amendment, as in many other areas, the struggle for racial justice
produced ramifications that extended far beyond its point of origin.
Once loosed, liberty, like equality, was an idea not easily cabined.
On the other hand, King and his allies suffered significant defeats
in the legislative, executive, and judicial arenas. They were forced to
compromise on key issues in order to obtain passage of federal civil
rights legislation. Activists discovered that the willingness of
Presidents Kennedy and Johnson to invest political capital on behalf of
the Movement often lagged behind their promises. And Movement activists
failed to persuade the Supreme Court that racial discrimination in
places of public accommodation violated the federal constitution; the
outlawing of 'private' discrimination in businesses open to the public
occurred through the intervention of the Civil Rights Act of 1964, a
less aggressive law in certain respects than the Reconstruction-era
legislation it was meant to replace.
Despite the centrality of King's role, it would be erroneous to
conflate, without qualification, his career and the history of the
Movement. The Movement consisted of a mass of local initiatives that
received inspiration and guidance from a striking array of figures who,
at one time or another, diverged quite markedly from King. One thinks,
for instance, of such vital leaders as Roy Wilkins, James Farmer, Robert
Moses, John Lewis, Stokely Carmichael, Fred Shuttlesworth, and Fannie
Lou Hamer. King, however, is the person most widely identified in the
public imagination with the Civil Rights Movement. The Movement would
probably have transformed America without his presence. But it is hard
to believe that history's replacement could have offered the eloquence,
vision, and moral gravity that King provided.
This Article focuses upon legal issues that shaped and were in turn
shaped by Martin Luther King's first campaign as a civil rights leader:
the boycott in 1955-1956 of segregated buses in Montgomery, Alabama. In
Section I, I describe the legal status of the Negro in the South in
1955. This overview portrays the legal and extra-legal situation
southern blacks faced on the eve of the boycott and provides a baseline
against which to measure what King and the Movement accomplished.
In Section II, I describe the origins and early development of the
Montgomery Bus Boycott and of the organization that guided it, the
Montgomery Improvement Association (MIA), as well as King's entrance
into national prominence as the MIA's president. I emphasize two points
in particular. The first is the striking modesty of the protest's
initial demands. Although the boycott began one and a half years after
the Supreme Court invalidated de jure segregation in public schooling,
King and the MIA did not initially demand the abolition of de jure
segregation on Montgomery's buses; they primarily demanded courtesy and
formal even-handedness, taking for granted the continued existence of
racial separation. The second is the considerable extent to which the
white power structure, exemplified by the bus company's attorney, a
Harvard-trained lawyer named Jack Crenshaw, inadvertently radicalized
King and the MIA. Crenshaw stubbornly maintained that the MIA's initial
requests were impossible to satisfy within the confines of existing
state and local law. His reading of the relevant statutes cut off
avenues of compromise. In response, and to many people's surprise, the
leaders of the MIA demanded more--and won more--than they had originally
even contemplated.
In Section III, I discuss litigation ignited by the boycott. I focus
on two cases in particular. State v. King involved King's conviction for
violating an Alabama anti-boycotting statute. I examine his prosecution
as a socio-political event and show how, ironically, it furthered the
cause of the protest. I then examine the doctrinal issues raised by the
prosecution--statutory vagueness, selective prosecution, the authority
of states to regulate political boycotts--and relate them to
constitutional law as it stood in 1956 and as it stands today. In the
second case, Gayle v. Browder, the Supreme Court affirmed a three-judge
district court's decision striking down state and local statutes in
Alabama requiring racial segregation aboard intrastate vehicles. I
examine the difficulties that faced the three southern, white judges who
had to decide whether to extend Brown, and the strategy behind the
Supreme Court's disposition of the case.
Finally, in Section IV, I explore the achievements of the boycott and
its associated litigation. Although I note in some detail the limits of
the boycott's short run accomplishments, I conclude by emphasizing the
manifold ways in which, over the long run, the experiences gained, the
attention won, and the inspiration generated by King and his associates
strengthened a Movement that produced tremendous changes that continue
to reverberate in our society. Viewed against a backdrop of slightly
more than thirty years, the boycott in Montgomery can rightly be deemed
not only the starting point of Martin Luther King's public career but
also, perhaps, its most impressive moment.
Guiding my analysis of specific events, developments, and problems
are two broad methodological aims. The first is to add a lawyer's vision
to the historical study of the Civil Rights Movement between 1955 and
1968. During the 1960's, the Movement was the subject of considerable
commentary by practicing attorneys and legal academics. Since then, it
has received relatively little attention from the legal community. The
most illuminating recent studies have mainly consisted of work by
historians, journalists, political scientists, and sociologists. I draw
upon that work liberally in the pages that follow and hope that my study
will nourish such undertakings. The reason why reappraisal of the
Movement from the perspective of a legal academic is potentially
enlightening is that, all too often, scholars without legal training
either shy away from questions that appear to require technical legal
expertise or neglect topics that are likely to be of special concern to
the legal imagination: the substance and application of legal doctrine,
the relationship between case law at a given point in the past and
prevailing contemporary trends, litigation strategies, and lawyerly
performance.
My second aim is to write about the legal ramifications of the
struggle against segregation without falling victim to either the
illusion that what happened had to happen or the notion that the losing
side--the side supporting de jure segregation--was wholly bereft of
morality or reason. Both of these tendencies represent seductive strands
of 'victor's history' which, if indulged, obscure important aspects of
the past. I attempt to respect segregationists in the sense of taking
their ideas seriously; after all, Martin Luther King did. Some
segregationists thought long and hard about the peculiar form of racial
hierarchy they sought to maintain. We can benefit from attention to
their views, particularly their insistence that segregation represented
'a way of life.' That conception of segregation is far more attuned to
the fluid, hydra-headed nature of the segregation regime than the static
and formalistic conception that has so thoroughly and unfortunately
dominated the legal imagination.
[p] Assistant Professor, Harvard Law School.
[1]. King, Foreword to W. KUNSTLER, DEEP IN MY HEART. at xxi (1966).
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